| Ind. | May 31, 1858
Suit upon a forfeited recognizance. The recognizance reads thus:
*297 “ Know all men by these presents that we, James W. MeAllister and Thomas Patterson, acknowledge ourselves to owe and be indebted unto said state, in the penal sum of 500 dollars, to be levied of our goods and chattels, lands and tenements, if default be made in this condition, to-wit:
“ The .condition of this recognizance is such, that if the said James Wesley McAllister will well and truly appear before the judge of the Greene Circuit Court, on the first day of the term of the Circuit Court to be held at Bloomfield in Greene county, Indiana, and then and there answer the state of Indiana on a charge of grand larceny, and also then and there abide the order and determination of said Court, and not depart without leave thereof, then this recognizance to be null and void, otherwise to be and remain in full force and virtue in law and equity.
“ Witness our hands and seals, this 19th day of October, 1852. [Signed,] James W. McAllister, [seal.]
Thomas Patterson, [seal.] ”
“ Taken and approved by me, this 20th day of October, 1852. Wm. J McIntosh, sheriff, by John Cole, deputy.”
The recognizance is set out, in hcec verba, in the complaint which is called, and is in the form of, a scire facias.
The suit was instituted after the 6th of May, 1853. The complaint, or scire facias, set out the charge, the writ, the taking of the recognizance, its forfeiture, &c.
The defendants appeared, pleaded, appeared again, withdrew their plea, but not their appearance, and suffered judgment nil dicit.
The appellants seek to reverse that judgment on these grounds:
1. That the recognizance is defective.
2. That it appears to have been taken by a deputy, and • there is no averment that the deputy had been legally appointed.
3. That the suit should have been an action of debt, pursuant to § 48, 2 R. S. p. 366, and not a scire facias on the recognizance.
To the first objection, if true in point of fact, the following section of the statute is a complete answer:
“ No official bond entered into by any officer, nor any bond, recognizance or written undertaking taken by any officer in the discharge of the duties of his office, shall be void for want of form or substance, or recital, or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance, or written undertaking, to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance, or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance, or written undertaking were perfect in all its parts.” 2 R. S. p. 213, § 790.
, The failure to make any such suggestion in the first instance, could always be cured by amendment.
As to the second objection, the return is made precisely as it should be, when a recognizance is taken by a deputy. Gwynne on Sheriffs, 450. See 2 R. S. p. 11, § 4. And if the defendant wished to put in issue the deputy’s authority, in the given case, to serve the writ and take the recognizance, he should have raised the objection, at all events, by answer. See Allen v. Thaxter, 1 Blackf. 399" court="Ind." date_filed="1825-11-22" href="https://app.midpage.ai/document/allen-v-thaxter-7029524?utm_source=webapp" opinion_id="7029524">1 Blackf. 399; Thomas v. Reister, 3 Ind. R. 369. Perhaps he should have moved, in the first instance, to have been discharged from arrest.
But suppose the service was by a special deputy, appointed simply to execute the writ in the given case. See The New Albany, &c., Co. v. Grooms, 9 Ind. R. 243.
The third objection, goes to a mere matter of form, or name. The scire facias contains all the allegations of a good complaint. It is not material by what name the action is called. A mere matter of form is waived by proceeding in the cause below without raising the objection.
Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs.